With evolution of the present social media, hash tags have become an importing marketing tool. And thus, very frequently hashtag protection as intellectual property is thought of.
Hashtags, are not designs or inventions thus, aren’t protectable under patent or design laws. They are too small for copyright protection and so they can only be protected under trademark laws.
The United States Patent and Trademark Office (UPTO), in 2013 granted protection to hashtags under the Trademark Manual of Examining Procedure (TMEP).
According to TMEP hashtags can only be protectable if they are source indicators. Hashtags therefore, can be protectable only if they indicate the source of the applicant’s goods or services. Descriptive or generic words cannot be registered as trademarks if used with the ‘#’ prefix. The UPTO has registered over 1000 hashtags in the last two years alone.
The UPTO for hashtag trademark registration considers the context in which it is used, the placement of the hash symbol in the mark, how the hashtag is been used and the goods or services that the hashtag is been used to identify.
The stand of UPTO still is not certain as it has also rejected a few hashtags for registration. In 2015, in Eksouzian v. Albanese, the district court of California held “hashtags are merely descriptive devices, not trademarks… in and of themselves.”
Thus, so far the protection of hashtags under trademark law may seem uncertain with some more precedents a clearer outline of the protection would be visible.